United States District Court, E.D. Louisiana
IN RE IN THE MATTER OF MARQUETTE TRANSPORTATION COMPANY, LLC, ET AL.
ORDER AND REASONS
J. BARBIER, UNITED STJATES DISTRICT JUDGE
the Court is a Motion to Appeal Magistrate's
Decision (Rec. Doc. 18) filed by the
Petitioners in Intervention-Kenneth Fredric, Donaldsonville
Glass & Body Works, Inc., Nolan Guillot, Jr., and First
& Last Chance, et al., a class of litigants who filed a
class action in the 23rd Judicial District Court for Parish
of St. James, Louisiana (No. 39022) for their economic losses
resulting from closure of the Sunshine Bridge. Marquette
Transportation Company, LLC (“Marquette”) filed
an opposition (Rec. Doc. 19), and Petitioners filed a reply.
(Rec. Doc. 22).
contend the Magistrate's January 16, 2019 order contains
three separate errors: (1) the order incorrectly applies a
procedural rule to deny a substantive right created by saving
to suitors clause, 28 U.S.C. 1333(1); (2) the order
incorrectly applies a literal interpretation of Fed. R. Civil
Proc. Supp. R. F(5), by holding the rule requires anyone
opposing the limitation to file a claim; and (3) the order
incorrectly denied the petitioners' request to lift the
stay because the stay is overbroad. Petitioners raise these
first and third issues for the first time in their appeal,
and these arguments might therefore be considered waived.
See Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.
1994). The Court considers Petitioner's second argument,
that the Magistrate misapplied RuleF(5), first.
crux of the Petitioner's position is that they should be
allowed to intervene and lift the stay because they are
asserting only state law claims. They say that because they
are not “claimants” under federal law, they are
not required to file a claim in order to contest
Marquette's “right to limitation of liability,
” as is clearly contemplated by Rule F. As Petitioners
candidly admit, by framing their claim in such a way, they
seek to side-step the clearly established maritime rule that
“denie[s] a plaintiff recovery for economic loss if
that loss resulted from physical damage to property in which
he had no proprietary interest.” State of Louisiana
ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1022 (5th
Cir. 1985) (en banc). Magistrate Judge Wilkinson held that
the Petitioners must file a claim in accordance with Rule
F(5), before they could raise their arguments. In so doing,
the Magistrate relied on a decision from the Eighth Circuit,
In re American River Transportation. Co., 728 F.3d
839 (8th Cir. 2013). In American River, the Eight
Circuit held that “Rule F(5) creates statutory standing
requirements for challenging limitation actions.” 728
F.3d at 842. To the Court's knowledge, the Fifth Circuit
has made no ruling on this issue and in the absence of such
contrary binding precedent, the Magistrate's decision is
not “clearly erroneous” or “contrary to
law.” The Supplemental Rules provide the proper
procedure for challenging the limitation action-this process
does not require intervention, and it was not error to deny
intervention in this proceeding.
also argue the saving to suitors clause, 28 U.S.C. 1333(1),
prohibits the Magistrate's order that Petitioners file a
claim in accordance with Rule F. However, the Magistrate
implicitly considered the clause when he applied the law of
Texaco, Inc. v. Williams, 47 F.3d 765, 767 (5th Cir.
1995), a case which examined the “‘recurring and
inherent conflict' between the exclusive jurisdiction
vested in admiralty courts by the Limitation of Liability Act
and the common law remedies embodied in the saving to suitors
clause of 28 U.S.C. § 1333.” Texaco, 47
F.3d at 767. The Magistrate correctly applied Texaco
in denying the Petitioners' motion to lift the stay
because the requirements set out for allowing a state court
proceeding were not met: all possible claimants did not
stipulate that the federal court has exclusive jurisdiction
or that the claimants will not pursue enforcement of a
judgment in excess of the value of the ship and its freight
until the Court determines the shipowner's right to limit
liability. Id. at 768. Finally, finding that the
order denying intervention and declining to lift the stay was
not erroneous, the Court declines to consider the scope of
the stay in this posture. This issue should be determined in
the proper course of the proceeding.
IT IS HEREBY ORDERED that the Motion to
Appeal Magistrate's Decision (Rec. Doc.
18) is DENIED. The Magistrate's
order (Rec. Doc. 17) is AFFIRMED.
 The Court does not reach
Marquette's argument that the intervention should be
denied because Petitioners have moved this court as a class
in spite of Fifth Circuit precedent finding that class
actions are incompatible with concursus proceedings.
 (Rec. Doc. 18).
 Petitioners seek to recover under a
line of Louisiana cases recognizing economic losses realized
as a result of blocked thoroughfares and pursuant to La. Civ.
Code Ann. art. 458: “Works built without lawful permit
on public things, including the sea, the seashore, and the
bottom of natural navigable waters, or on the banks of
navigable rivers, that obstruct the public use may be removed
at the expense of the persons who built or own them at the
instance of the public authorities, or of any person residing
in the state. The owner of the works may not prevent their
removal by alleging prescription or
 “If a claimant desires to
contest either the right to exoneration from or the right to
limitation of liability the claimant shall file and serve an
answer to the complaint unless the claim has included an
answer.” Fed. R. Civil Proc. Supp. R. F(5).
 Fed. R. Civ. Proc. 72(a). Furthermore,
courts are of course bound to apply the “literal
interpretation” of the Rules, unless the plain meaning
would produce an absurd result. The result of the
Magistrate's ruling is far from absurd. While the Fifth
Circuit has not had opportunity to consider whether Rule F(5)
creates a standing requirement, it has emphatically rejected
the Petitioners' suggestion that they should be allowed
to lift the stay because state law affords them relief that
federal does not. See In re Bertucci Contracting Co.,
L.L.C., 712 F.3d 245, 247 (5th Cir. 2013)
(“Appellants' argument that recovery under state
law is available even if maritime law bars recovery is
foreclosed by circuit precedent ...